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Thursday, August 22, 2013

contempt of court =Advocate on record - refused to attend before the court when pressed his presence = An application for restoration of the said appeal was filed by Shri Rameshwar Prasad Goyal, Advocate-on-Record (hereinafter referred to as AOR). The said application was listed in the Court on 8.7.2013. The Court was of the view that the facts contained in the application were not correct and the counsel appearing for the applicant was not able to clarify the same. The Court passed over the matter and asked the counsel appearing therein to call the AOR who would be able to explain the factual controversy. When the matter was taken up in the second round, the Court was informed that Shri Rameshwar Prasad Goyal, AOR refused to come to the Court. It has also been pointed out that the said AOR has filed extremely large number of cases in this Court but never appears in the Court. In view of the refusal of the AOR to come to the Court, this Court had no other option but to dismiss the application. However, the Court issued a show cause notice to the said AOR as to why his name should not be removed from the register of AsOR, as his conduct was ‘unbecoming’ of an AOR. Prima facie, his conduct would tantamount to interfering with the administration of justice. Being an AOR, he ought to have appreciated that the institution of AsOR has been created under the Supreme Court Rules, 1966 (hereinafter referred to as the ‘Rules’) and no one can appear in this Court except by the authority of an AOR; or unless instructed by an AOR. Considering the gravity of the issue involved herein, this Court also requested the Association of AsOR, through its President and Secretary, to assist the Court in dealing with this situation as our experience has been that some AsOR, who have filed a large number of cases have been lending their signatures for consideration and take no responsibility for the matter and never appear in the Court. 2. In response to the same, Shri Rameshwar Prasad Goyal, AOR has filed his reply tendering an absolute and unconditional apology and has given an undertaking that he would not repeat such a mistake again in future. = At the time of hearing, Shri Rameshwar Prasad Goyal, AOR, not only tendered absolute and unconditional apology and promised not to repeat the misconduct in future but also assured the court that he would remain present in the court in all the cases where he had entered appearance for either of the parties. Some senior advocates and a large number of members of the Bar have also asked the Court to pardon him as he would abide by the undertaking given by him.- In view of above, though the conduct of Shri Goyal, AOR, has been reprehensible and not worth pardoning but considering the fact and circumstances involved herein, his conduct is censured and we warn him not to behave in future in such manner and to appear in court in all the cases wherever he has entered appearance. The court shall examine his conduct for one year from now and if no improvement is found, may initiate the proceedings again. With these observations, the matter stands closed for the time being.

                      published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40678   
REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION


                 SUO MOTU CONTEMPT PETITION NO. 312 of 2013




      In Re: Rameshwar Prasad Goyal, Advocate






                              J  U D G M E N T




      Dr. B.S. Chauhan, J.


      1.    Civil Appeal No. 1398 of 2005,  Mohamed  Israfil  v.  Raufunessa
      Bibi (D) by L.Rs. & Ors., was dismissed in default  vide  order  dated
      8.3.2013 as none appeared to press the  appeal.  
An  application  for
      restoration of the said appeal was  filed  by  Shri  Rameshwar  Prasad
      Goyal, Advocate-on-Record (hereinafter referred to as AOR).  
The  said
      application was listed in the Court on 8.7.2013.  The Court was of the
      view that the facts contained in the application were not correct  and
      the counsel appearing for the applicant was not able  to  clarify  the
      same. 
The Court passed over the matter and asked the counsel appearing
      therein to call the AOR who would  be  able  to  explain  the  factual
      controversy.  
When the matter was taken up in the  second  round,  the
      Court was informed that Shri Rameshwar Prasad Goyal,  AOR  refused  to
      come to the Court.  
It has also been pointed out that the said AOR has
      filed extremely large number of cases in this Court but never  appears
      in the Court.  
In view of the refusal of the AOR to come to the Court,
      this Court had  no  other  option  but  to  dismiss  the  application.
      
However, the Court issued a show cause notice to the said  AOR  as  to
      why his name should not be removed from the register of AsOR,  as  his
      conduct was ‘unbecoming’ of an AOR. Prima  facie,  his  conduct  would
      tantamount to interfering with the administration of justice. 
Being an
      AOR, he ought to have appreciated that the institution  of   AsOR  has
      been created under the Supreme Court Rules, 1966 (hereinafter referred
      to as the ‘Rules’) and no one can appear in this Court except  by  the
      authority of an AOR; or unless instructed by an AOR.  
Considering  the
      gravity of the issue involved herein, this Court  also  requested  the
      Association of AsOR, through its President and  Secretary,  to  assist
      the Court in dealing with this situation as our  experience  has  been
      that some AsOR, who have filed a  large  number  of  cases  have  been
      lending their signatures for consideration and take no  responsibility
      for the matter and never  appear in the Court.
      2.    In response to the same, Shri Rameshwar Prasad  Goyal,  AOR  has
      filed his reply tendering an absolute and  unconditional  apology  and
      has given an undertaking that he would not repeat such a mistake again
      in future.  
He has also given many reasons for not  appearing  in  the
      Court but none of them has impressed us and  none  of  them  is  worth
      mentioning herein.
It is not that he has entered appearance  in   very
      few cases; the information received reveals that Mr. Rameshwar  Prasad
      Goyal has entered appearance in as many as  1678  cases  in  the  year
      2010, in 1423 cases in the year 2011, and in 1489 cases  in  the  year
      2012.
Upto 19.7.2013, he has entered appearance in  922  cases.  
The
      number of cases filed by him is too big.


      3.    In Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar,  (2010)  1
      SCC 166, this Court made an attempt to deal with the menace of lending
      of signatures for a petty amount by a few AsOR without  any  sense  of
      responsibility and rendering any assistance to the Court.  The  record
      reveals that the matter stood subsequently  dismissed  on  some  other
      grounds. However, the issue of conduct  of  an  AOR,  particularly  in
      respect of name lending  was  referred  to  the  Supreme  Court  Rules
      Committee vide order dated 12.10.2011.


      4.    Relevant rules for the purpose of adjudicating  upon  the  issue
      involved herein are contained in Order IV of the Rules, which read  as
      under:
           “4.   Any advocate not being  a  senior  advocate  may,  on  his
           fulfilling the conditions laid down in rule 5, be registered  in
           the Court as an advocate on record:


                        xxx   xxx  x xx  x xx    xxx


           6. (a) An advocate on record shall, on his filing  a  memorandum
           of appearance on behalf of a party accompanied by a  vakalatnama
           duly executed by the party, be entitled-


               (i)     to act as well as to plead  for  the  party  in  the
               matter and to conduct and prosecute  before  the  Court  all
               proceedings that may be taken in respect of the said  matter
               or any application connected with the same or  …


                        xxx   xxx  x xx  x xx    xxx


           (b)   No advocate other than an  advocate  on  record  shall  be
           entitled to file an appearance or act for a party in the Court.

                        xxx   xxx  x xx  x xx    xxx


           8A.    When, on the complaint of any person  or  otherwise,  the
           Court is of the opinion that an  advocate  on  record  has  been
           guilty of misconduct or of conduct unbecoming of an advocate  on
           record, the Court may make an order removing his name  from  the
           register of advocates on record either permanently or  for  such
           period as the Court  may  think  fit  and  the  Registrar  shall
           thereupon report the said fact to the Bar Council of  India  and
           to State Bar Council concerned:
                        xxx   xxx  x xx  x xx    xxx


           10. No advocate other than an advocate on  record  shall  appear
           and plead in any matter unless he is instructed by  an  advocate
           on record.”
                                              (Emphasis added)




      5.    The term “Otherwise” contained in Rule 8-A has been  defined  in
      dictionary to  mean  contrarily,  different  from  that  to  which  it
      relates; in a different manner; in another way; in any other  way;  in
      some other like capacity; in other circumstances; in  other  respects;
      and relating to a distinct and separate  class  altogether.  The  word
      'otherwise' should  be  construed  as  ejesdum  generis  and  must  be
      interpreted to mean some kind of legal obligation or some  transaction
      enforceable in law.
      (See: Kavalappara Kottarathil Kochuni @ Moopil Nayar  &  Ors.  v.  The
      State of Madras and Kerala & Ors., AIR 1960 SC 1080; George  Da  Costa
      v. Controller of Estate Duty, Mysore, AIR 1967 SC 849;  Krishan  Gopal
      v. Shri Prakashchandra & Ors., AIR 1974 SC 209; Municipal  Corporation
      of Delhi v. Tek Chand Bhatia, AIR 1980 SC 360; S.R. Bommai v. Union of
      India & Ors., AIR 1994 SC 1918; and International Airport Authority of
      India & Ors. v. Grand Slam International & Ors., (1995) 3 SCC 151).


      6.    This Court in Supreme Court Bar Association v.  U.O.I.  &  Anr.,
      AIR 1998 SC 1895 observed :
           “……In  a  case  of  contemptuous,  contumacious,  unbecoming  or
           blameworthy  conduct  of  an  Advocate-on-Record,   this   Court
           possesses jurisdiction, under the Supreme Court Rules itself, to
           withdraw his privilege  to  practice  as  an  Advocate-on-Record
           because that privilege is conferred by this Court and the  power
           to grant the privilege includes the power to revoke  or  suspend
           it……”                        (Emphasis added)


      7.    Thus, it is evident that this  Court  is  competent  to  proceed
      against an AOR suo motu, without any complaint  from  any  person,  if
      prima facie it is of the opinion that an AOR is guilty  of  misconduct
      or of conduct unbecoming of an AOR.


      8.    The Rules make the position clear that in order to carry out its
      work smoothly, this  Court  has  framed  the  rules  under  which  the
      institution of AsOR is created.  Rule 8A, Order IV enables  the  Court
      to deal with a  situation  where  an  AOR  commits  misconduct  or  he
      conducts himself/herself in a manner unbecoming of an AOR.
           In fact, this Court has conferred a privilege upon the AsOR.  To
      carry out certain responsibilities and failure to carry out  the  same
      would definitely tantamount to unbecoming conduct of an  AOR,  if  not
      misconduct.
      9.    Lawyers play an important part in the administration of justice.
      The  profession  itself  requires  the  safeguarding  of  high   moral
      standards. As an officer of the court the overriding duty of a  lawyer
      is to the court, the standards of his profession and  to  the  public.
      Since the main job of a lawyer is to assist the  court  in  dispensing
      justice, the members of the Bar cannot behave with  doubtful  scruples
      or strive to thrive on litigation. Lawyers must remember that they are
      equal partners with  judges  in  the  administration  of  justice.  If
      lawyers  do  not  perform  their  function  properly,  it   would   be
      destructive of democracy and the rule of law. (Vide: Manak Lal v.  Dr.
      Prem Chand Singhvi & Ors., AIR 1957 SC 425; Smt. Jamilabai Abdul Kadar
      v. Shankarlal Gulabchand & Ors., AIR 1975 SC 2202; The Bar Council  of
      Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242;  S. P. Gupta & Ors. v.
      President of India & Ors., AIR 1982 SC 149; and Sheela Barse v.  State
      of Maharashtra, AIR 1983 SC 378).


      10.   In Re: Sanjiv  Datta,  Dy.  Secy.,  Ministry  of  Information  &
      Broadcasting, (1995) 3 SCC 619, this  Court  while  dealing  with  the
      issue held :
           “……Some members of the profession have been adopting perceptibly
           casual approach to the practice of the profession as is  evident
           from their absence when the matters are called out,  the  filing
           of  incomplete  and  inaccurate  pleadings  -  many  times  even
           illegible and without personal check and verification, the  non-
           payment of court fees and process fees, the  failure  to  remove
           office objections, the  failure  to  take  steps  to  serve  the
           parties, et al. They do not realise  the  seriousness  of  these
           acts and omissions. They not only amount to the contempt of  the
           court but do positive disservice to  the  litigants  and  create
           embarrassing  situation  in  the  court  leading  to   avoidable
           unpleasantness and delay in the disposal of matters. This augurs
           ill  for  the  health  of  our  judicial  system…..  The   legal
           profession is different from other professions in that what  the
           lawyers  do,  affects   not   only   an   individual   but   the
           administration  of  justice  which  is  the  foundation  of  the
           civilised society…… The casualness and indifference  with  which
           some  members  practice  the  profession   are   certainly   not
           calculated to achieve that purpose or to  enhance  the  prestige
           either  of  the  profession  or  of  the  institution  they  are
           serving..”
                  (Emphasis added)




      11.   “Law is no trade, briefs no merchandise”. An advocate  being  an
      officer of the court has a duty to ensure smooth  functioning  of  the
      Court.  He has to revive the person in distress and cannot exploit the
      helplessness of innocent litigants. A wilful and callous disregard for
      the interests to the client may in a proper case be  characterised  as
      conduct unbefitting an advocate.  (See : In the matter of Mr. ‘P’,  an
      Advocate, AIR 1963 SC 1313; T.C. Mathai & Anr. v. District &  Sessions
      Judge, Thiruvananthapuram, AIR 1999 SC 1385  D.P.  Chadha  v.  Triyugi
      Narain Mishra & Ors., AIR 2001  SC  457;  and  Smt.  Poonam  v.  Sumit
      Tanwar, AIR 2010 SC 1384)


      12.    If  the  AOR  does  not  discharge  his  responsibility  in   a
      responsible manner because he does not appear whenever the  matter  is
      listed or does not take any interest in conducting the case, it  would
      amount to not playing any role whatsoever. In such  a  fact-situation,
      lending signatures for consideration would amount to misconduct of his
      duty towards court.  In case the AOR is only  lending  his  signatures
      without taking any responsibility for conduct  of  a  case,  the  very
      purpose of having the institution of AsOR stands defeated.


      13.   In Ex Capt. Harish Uppal v. UOI & Anr., AIR 2003  SC  739,  this
      court has categorically held that if a lawyer refuses  to  attend  the
      court, it is not only unprofessional but also unbecoming of  a  lawyer
      disentitling him to continue to appear in Court.
           “. ……The very sight of an advocate, who is guilty of contempt of
           court or of unbecoming or unprofessional  conduct,  standing  in
           the court would erode the dignity of the court and even  corrode
           its majesty besides impairing the confidence of  the  public  in
           the efficacy of the institution of the courts.”




      14.   In Lt. Col. S.J. Chaudhary v. State (Delhi Admn.), AIR  1984  SC
      618, this Court held that it is the duty of every advocate who accepts
      a brief to attend the trial and this duty cannot be  overstressed.  It
      was further reminded by this Court that “having accepted the brief, he
      will be committing a breach of his professional duty, if he  so  fails
      to attend.” The court further relied on Warvelle’s Legal Ethics, at p.
      182 which is as under:
           “A lawyer is under obligation to do nothing that  shall  detract
           from the dignity of the court, of which he is  himself  a  sworn
           officer and assistant. He should at all  times  pay  deferential
           respect to the Judge, and scrupulously observe  the  decorum  of
           the courtroom.”




      15.   This Court has depreciated the practice of name lending in Tahil
      Ram Issardas Sadarangani & Ors. v.  Ramchand  Issardas  Sadarangani  &
      Anr., AIR 1993 SC 1182, wherein the High Court had dealt with  a  case
      of a firm of advocates merely  lending  its  name  and  did  not  take
      further responsibility to plead or act. The High Court found  such  an
      arrangement most unfortunate and contrary to the duty  and  obligation
      of a counsel towards the clients as well as to  the  court.  Approving
      the said view, this Court held as under:
           “Legal profession must give an  introspection  to  itself.   The
           general impression which the profession gives today is that  the
           element of service is disappearing and the profession  is  being
           commercialised.   It is for the members of the Bar  to  act  and
           take positive steps to remove this impression before it  is  too
           late.”




      16.   The institution of AsOR is to  facilitate  the  working  of  the
      Court as contained in Order IV Rule 6. It  entitles  an  AOR  to  act,
      plead,  conduct and prosecute before this  Court  in  respect  of  all
      matters filed by him.  To act means  to  file  an  appearance  or  any
      pleading or any application in the Court and  such  a  task  has  been
      entrusted solely upon an  AOR  and  no  other  advocate  can  file  an
      appearance or act for the party without his authorisation.  The  Court
      conducts an  examination before enrolling a person as an AOR  and  the
      basic purpose to have such an examination is  to  verify  whether  the
      person is well versed with the rules, practice and  procedure  of  the
      Court and to test his legal acumen  and  ethics.   He  must  be  fully
      acquainted with the drafting of proceedings as well as its  manner  of
      filing in the Registry.  An AOR is not beneficial only  to  the  Court
      but also assists in the working of the  Registry.   In  such  a  fact-
      situation, an AOR cannot lend his signatures just  to  camouflage  the
      requirement of rules.  He, in addition to doing the work of  drafting,
      filing appearance and assisting the Court, must maintain  professional
      ethics and proper standards so  that  the  Court  may  rely  upon  him
      without any reservation.


      17.   Availability of justice to all which is a social goal,  must  be
      made a reality. However, it cannot be done unless  there  is  an  easy
      access to the Bench and the Bar both. If  the  Court  is  not  working
      properly or if the Bar is not rendering proper  assistance,  it  would
      lead to a travesty of justice and destroy the basic  democracy,  which
      would tantamount to failure of administration of justice.  The  people
      and particularly, the common man would cease to  be  beneficiaries  of
      democracy. Justice is based on law and law in modern democracy is  too
      complicated, therefore, it is not possible for an ordinary litigant to
      raise his voice without engaging a  lawyer.  In  case  the  lawyer  is
      negligent or not willing to assist the court, or fails to perform  his
      duty  towards  the  court,  loss  to  the  poor  litigant  is   beyond
      imagination.


      18.   In the present era, the legal profession, once known as a  noble
      profession,  has  been  converted  into  a   commercial   undertaking.
      Litigation has become so expensive that it has gone beyond  the  reach
      and means of a poor man. For a longtime, the people of the nation have
      been  convinced that a case would not culminate during the  life  time
      of the litigant and is beyond the ability of astrologer to  anticipate
      his fate. It is in this context that a suggestion  has  been  made  to
      amend the statutory provision in respect of substitution of the  legal
      representative(s) of a party, to the effect that  both  the  plaintiff
      and defendant must make a statement in  the  plaint/written  statement
      respectively as who would  be  his  legal  representative(s)  as  they
      cannot expect that matter could be decided in their  life  time.   Any
      order passed by the Trial Court on the application of substitution  of
      legal representative(s) is generally challenged time and  again  right
      up to this Court with the proceedings in the  Courts  below  remaining
      stayed.


      19.   Transparency in functioning of the court and accountability with
      respect to the Bench and the Bar  are  fundamentals  in  a  democracy.
      Therefore, the Bench as well as the Bar have to carry out their duties
      with full sense of responsibility.
           The Courts exist for the litigants, where a lawyer has to  plead
      the case of his client with full sincerity and responsibility.   In  a
      system, as revealed in the instant case, a half baked  lawyer  accepts
      the brief from a client coming  from  a  far  distance,  prepares  the
      petition and asks an AOR, having no liability  towards  the  case,  to
      lend his signatures for a petty amount.  The AOR happily accepts  this
      unholy advance and obliges the lawyer who has approached  him  without
      any further responsibility.  The AOR does not know the client, has  no
      attachment to the case and no emotional sentiments  towards  the  poor
      cheated clients.  Such an attitude tantamounts to cruelty in the  most
      crude form towards the innocent litigant.    In  our  humble  opinion,
      conduct of such AOR is certainly unbecoming  of  an  AOR.  Though  the
      observations  by this Court in Tahil Ram Issardas Sadarangani  (supra)
      were made two decades ago, the same are apposite even today.  The  Bar
      failed to have an introspection and improve the situation.


      20.    The facts of this case present a very sorry state of affair.
 A
      noble profession has been allowed to be converted into a profession of
      cheating.
An AOR, whom the litigant has never briefed or engaged, has
      lended  his signature for a petty amount with  a  clear  understanding
      that he would not take any responsibility for any act in  any  of  the
      proceedings in the Registry or the Court in the matter.
The  Advocate
      who has been obliged by such an AOR must be going inside the  Registry
      in an unauthorised manner and must be appearing in the Court  directly
      or engaging a senior advocate without any knowledge/authorisation   of
      the AOR.  
It is beyond our imagination what could be more devastating
      and degrading for  the  institution  of  AsOR.
Even  a  few  of  them
      indulging in such an obnoxious practice spoils  the  working  of  this
      court,  without realising that Bench and Bar, both have to give strict
      adherence to moral code.


      21.     An AOR is the source of lawful recognition  through  whom  the
      litigant is represented and therefore,  he  cannot  deviate  from  the
      norms prescribed under the Rules.  
The  Rules  have  been  framed  to
      authorise a legally trained person with  prescribed  qualification  to
      appear, plead and act on behalf of a litigant.
Thus, not only is  his
      physical presence but  effective  assistance  in  the  court  is  also
      required.
He is not a guest artist  nor  is  his  job  of  a  service
      provider nor is he in a professional business nor can he claim to be a
      law tourist agent for  taking  litigants  for  a  tour  of  the  court
      premises.
An AOR is a seeker of  justice  for  the  citizens  of  the
      country.
Therefore, he cannot avoid court or be casual  in  operating
      and his presence in the court is  necessary.  
There  are  times  when
      pleadings and records have to be explained and thus, he has  to  do  a
      far more serious job and cannot claim that his role is merely a formal
      one or his responsibilities simply optional.
An  AOR  is  accountable
      and responsible for whatever is written and  pleaded  by  putting  his
      appearance to maintain solemnity of records of the court.
            The multi-tier operation of one lawyer hauling a client and then
      acting as a facilitator for some other lawyer to draw  proceedings  or
      engage another lawyer for arguing a case is definitely an  unchartered
      and unofficial system which cannot  be  accepted  as  in  essence,  it
      tantamounts to a trap for litigants which  is  neither  ethically  nor
      professionally a sound practice. 
Such conduct is ridiculously low from
      what is expected of a lawyer.  
This kind of conduct  directly  affects
      the functioning of the court and causes severe damage  that  at  times
      becomes irreparable and uncompensatory.  
It is ironic that an AOR  who
      has cleared an examination to  get  himself  authorised  lawfully  for
      assisting the court becomes conspicuous  by  his  absence  though  his
      presence is maintained on record.   
The defective  psychology  of  not
      appearing in the court is contrary to the first principle of advocacy.




      22.   Shri Sushil Jain, the learned  President  of  the  Advocates-on-
      Record Association, has given certain suggestions to check  activities
      of such unscrupulous AsOR in the  Court  and  Registry  but  as  those
      suggestions had earlier been forwarded  to  the  Supreme  Court  Rules
      Committee, it is not desirable for us to issue any direction  in  this
      regard.  However,  it  is  clarified  that  as  per  the   Rules,   no
      unauthorised person can deal  with  the  Registry  and  Registry  must
      strictly adhere to  the Rules.


      23.   At the time of hearing, Shri Rameshwar Prasad  Goyal,  AOR,  not
      only tendered absolute and unconditional apology and promised  not  to
      repeat the misconduct in future but also assured  the  court  that  he
      would remain present in the court  in  all  the  cases  where  he  had
      entered appearance for either of the parties.  
Some  senior  advocates
      and a large number of members of the Bar have also asked the Court  to
      pardon him as he would abide by the undertaking given by him.


      24.   In view of above, though the conduct of  Shri  Goyal,  AOR,  has been reprehensible and not worth pardoning but  considering  the  fact  and circumstances involved herein, his conduct is censured and we warn him not to behave  in future in such manner and to appear in court  in  all the cases wherever he has entered  appearance.   The  court  shall  examine his conduct for one year from now and  if  no  improvement  is  found, may initiate the proceedings again.  With  these  observations,  the matter stands closed for the time being.




                                      …...................................J.
                                                   (Dr. B.S. CHAUHAN)


                                     .....................................J.
                                    (S.A. BOBDE)
      NEW DELHI;
      AUGUST 22, 2013.

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